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It seems like every few months we hear about another video game that the publisher has decided it’s no longer worthwhile to support. Once upon a time, that merely meant no more patches or new content. But now that more frequently means that much, if not all, of that game is now unplayable because gamers will no longer be able to access the servers needed to play or authenticate the title. And it’s all perfectly legal thanks to the infamous Digital Millennium Copyright Act.

And the Entertainment Software Association — a trade group whose members include EA, Ubisoft, Warner Bros, Activision, Capcom, Sony, Microsoft, and Nintendo — is happy to keep it that way, recently telling Congress that Section 1201 is necessary not just to protect copyright but “to foster the distribution of their game content in new and exciting ways across a variety of different platforms and at a wide range of price points.”

Yes, somehow keeping it illegal to fix broken, abandoned games aids in this innovation; perhaps by forcing people to keep buying newer releases.

In testimony before Congress, the ESA gave the example of someone circumventing a streaming video service’s protections so that they would be able to view a movie offline. This would violate the copyright holder’s prohibition against offline access “irrespective of whether that circumvention enabled the unauthorized copying of that content, or merely the viewing of it.”

But that’s not really an apples-to-apples comparison when it comes to video games. If I pay a monthtly fee for access to Netflix of Amazon Prime, I’m paying for access to the library of movies these services offer with the understanding that titles will come and go. But if I buy a video game for a one-time payment of $60, there’s a sense that I own that game and that I am not merely paying for access that can end at the discretion of the publisher. One doesn’t buy a book and expect to come home one day and find that Random House has ripped all the pages out.

The U.S. Copyright Office and the Librarian of Congress (who inexplicably has the ultimate authority on deciding how to interpret the DMCA) are entering the every-three-years process of reviewing the statute to keep it relevant with the shifting topography of the digital marketplace.

This is why the Electronic Frontier Foundation has filed a request [PDF] with the Copyright folks to add an exemption in Section 1201 for game enthusiasts, museums, and academics “who wish to modify lawfully acquired copies of computer programs for the purpose of continuing to play videogames that are no longer supported by the developer, and that require communication with a server.”

“Section 1201 is often used by the entertainment industries not to prevent copyright infringement but to control markets and lock out competition,” writes the EFF in a blog post. “So it’s not surprising that ESA… along with MPAA and RIAA, have written to the Copyright Office to oppose this exemption.”

The gaming industry argues that allowing these modifications would “undermine the fundamental copyright principles on which our copyright laws are based,” and send the message that “hacking… is lawful.”

In fact, as the EFF points out, “hacking” in and of itself is completely legal.

“Most of the programmers that create games for Sony, Microsoft, EA, Nintendo, and other ESA members undoubtedly learned their craft by tinkering with existing software,” writes the EFF. “If ‘hacking,’ broadly defined, were actually illegal, there likely would have been no video game industry.”